That’s It? Let it Be?

It’s one of the dirtiest little secrets of criminal law.  We use the phrase constantly, as if it’s the most important phrase the law has to offer, yet we have  no idea what it means or how to explain it.

Beyond a reasonable doubt.

Can you hear the trumpets of the angels in the background as the mantra is uttered?  That’s not really the angels, apparently, but the horn section Phil Spector planned to add to the background of  Let it be.  From Shaun Martin’s  California Appellate Report (via the once formidable Legal Blog Watch, which now consists of Bruce Carton’s musings if he gets a free moment), comes People v. Moore.

Over and over, California appellate opinions through the years reiterate that the term “best defines itself'”; that “all attempts at definition are likely to prove confusing and dangerous”; and that “every attempt to explain [the definition of reasonable doubt] renders an explanation of the explanation necessary.” In short, as summed up by the court in People v. Johnson, 119 Cal. App.4th 976, 986 (2004), “[w]e trust that any trial judge who reads that history will heed the two English bards: . . . ‘Let it be.’ (Lennon & McCartney, Northern Songs 1970, ‘Let It Be.’)” 

I can state with complete confidence that 40 years ago, no one would have anticipated that a court would cite to the “two English bards,” Lennon & McCartney, with approval.  Not even in California.  How cool is that?

Yet, even this resort to once-pop culture doesn’t overcome the utterly amazing reality that we persist in using a phrase to decide whether a person goes to prison, gets executed, that defies definition.  We don’t know what it means.  Jurors don’t know what it means.  Every time a judge or lawyer makes an effort to explain it, he ends up making things worse, obscuring it more.

The best we can say is let it be?

For all the time, effort, cost, not to mention lives ruined on all sides of the issue, that are dedicated to the pretense that the criminal justice system is the best there is, it eventually comes down to this one phrase that means, well, nothing.  Sure, there’s some vague concept that it means more than lesser standards of proof, though most criminal defense lawyers believe that juries find it nearly impossible to distinguish between mere probability, the 51% likelihood that the guy is guilty,

That’s the problem with vagaries, that they end up becoming whatever a juror ultimately decides to make of them.  We can’t articulate a meaningful definition, and they can’t conceive of what exactly we expect of them.  It’s not their fault.  Not in the slightest.  It’s our fault for acquiescing in the perpetual use of this meaningless phrase because we can’t seem to figure out a definition that means what we intend it to mean.

The irony is that our inability to arrive at a viable definition reflects our own inability to agree on what this phrase means, or how one could possibly explain it to others.  It’s presumptuous on our part to believe that we have a firm idea what the standard of proof is.  If we did, we could create a definition.  We don’t.  We try to define it in the negative, what beyond a reasonable doubt isn’t.  It’s a remarkably unsatisfactory method of instruction, but it gets us past appellate reversal which is really all a judge can do.  Try to do better and watch how fast you get slammed.

But let it be is no answer.  It’s surrender.  It’s the institutionalization of failure.  It means that we have no clue what this phrase means, and we’ve given up trying to figure it out or come up with something better.  It means that people go to prison, or get executed, and it all hinges on a utterly meaningless phrase.

No matter how much you love the Beatles, and I have been a huge fan ever since I saw them on my birthday in 1964 on the Ed Sullivan Show, this isn’t the song upon which we should rely when condemning people to death.  Let is be may be great music, but it’s not a satisfactory standard of proof.

14 thoughts on “That’s It? Let it Be?

  1. Gideon

    I was going to write a comment, but it inspired me to write a post. So I’m going to do that, unless I get distra-oooh, shiny bouncy ball!

  2. SHG

    I will await your post on pins and needles, hoping that the shiny bouncy ball doesn’t distract you.

  3. Jeff Gamso

    As I just commented to Gideon (the love fest you two are having here requiring duplication):

    Back when I was in Texas, judges weren’t even supposed to define reasonable doubt. That left prosecutors free to tell jurors something like “reasonable doubt is a doubt for which you can give a reason,” which is horrible. More than one criminal defense lawyer gave what’s always seemed to me to be the clearest definition. “You’ve got to be real sure.”

  4. SHG

    Objection.  It should be, “you’ve got to be real, real, sure.”  Two “reals,” yer honor.  Maybe three.

  5. Jeff Gamso

    It’s a west Texas, drawn out “real” that lasts a couple of seconds and carries extra syllables – and lots of extra weight. And if you say it that way two or three times, you’ll have used up half the argument time the judge will let you have.

  6. SHG

    I’ve never been able to make the word “real” go into more than two syllables.  I guess it’s not enough for a New Yawker to wear Lucchese boots.

  7. John Burgess

    I don’t see it as ‘institutionalized failure’, but as the inevitable consequence of using human beings to sit in juries rather than, say, computers with inflexible definition tables.

    Sure, I wouldn’t be at all pleased if a jury sent me up because its definition was wrong, but I wouldn’t be pleased, either, if a computer did it because some programmer was jonesing for a Twinkie when he wrote that bit of code.

    Find a way to exclude humans from the process and you might find perfection. But if you can exclude humans from juries, why not exclude them from crime, too?

  8. SHG

    While I’m not sure the universe of options is limited to total human failure or a computer with inflexible definition tables, but I do like your image of “some programmer was jonesing for a Twinkie.” 

  9. ExPat ExLawyer

    California used to use “beyond a reasonable doubt and to a moral certainty.” We realllyyy liked that definition. Heard moral certainty’s been axed, though couldn’t bring myself to look up the CALJIC instructions and the melancholy trip down memory lane that might launch me on.

    The real world practical definition of course is does the jury believe, after considering not just the evidence but everything else that passes through the jurors’ hearts and minds, whether they think D done it.

    I recently read of a case where the infamous Mark Hurlbert of Vail and Breckenridge Colorado talked about a wall of guilt erected by the prosecution. He said it wasn’t a reasonable doubt if the defense just made holes in the wall, but rather the defense was required to “tear down” or maybe bulldoze down that wall. Is it just me, or does this appear to be an improper shifting of the burden of proof? The defense must have thought it was fine since they failed to object.

  10. SHG

    The moral certainty charge was always used in wholly circumstantial cases, as far as I know.  As for Hurlbert’s shifting of the burden, maybe the defense lawyer was asleep?

  11. Nashville Criminal Law Report

    Can Beyond Reasonable Doubt Be defined ?

    Shaun Martin and Scott Greenfield have recently commented on most criminal courts’ problem in explaining what is beyond a reasonable doubt . Proof " Beyond A Reasonable Doubt " is the most important protections that a citizen is given in…

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